The Ohio Democrat. (Logan, O. [Ohio]) 1886-1906, 1887-12-03
RAILROAD LAND GRANTS.

Lana dfants Onuef t"c Acs VI "'e' ~
1887.
WASHINGTON, Nov. 23.-The following
opinion relative to the adjustment Of rail-
road land grants under the act Of March o,
1887, was made public yesterday:
DEPARTMENT OF JUSTICE,
WASHINGTON, Nov. II, 1887.
The Secretary OF the Interior.
SIR-By your letter OF October fS, 1887, you
submit three questions for my opinion. They
arise upon the construction oi sections B. and
of the act OF the Sd OF March, 1887, which rs
shown by its title as whole, was passed ITO
provide for the adjustment OF lnnd grants made
by Congress to aid In the construction OF rail.
roads and for the forfeiture OF unearned lands
and for other purposes" ca U. 8. Stats, 5s0).
The first section Of the act directs the ADJUST
ment OF the grants.
The second section provides for the restora.
tion Of title to the United States, where lands
have been erroneously nscertained or patented
TO the railroads The third section Is THAT II
in the adjustment Of said grants, II shall appear
that the homestead or pre-emption entry OF any
bona fde settler has been enormously cancelled
on account of any railroad grant, or withdrawal
ofpublc lands from tho marke {. each settler upon
application, shall be reinstated in all his rights
and allowed to perfect his entry by complying
with the public land laws /; provided. that he has
not leased another claim, or made an entry IN
lieu Of the one so enormously cancelled; and
provided, also. that he did not voluntarily
abandon said original entry. and provided, fur-
ther, that II any OF said settlers do not renew
their application to be reinstatcd within o rea-
sonable time to be fixed by the Secretary OF the
Interior, then oil such unclaimed lands shall be
priority Of right given to bona fde purchasers Of
said unclaimed land, II any. and II there be no
such purchasers, then to bona tide settlers re-
der this section is: What class OF purchasers
is referred to by the expression OF bona nae
purchasers of said unclaimed lands? Three
section. First. bona tide settlers who home
stead or presumption entries have been erro.
neously cancelled on account OF railroad
chnsers of such unclaimed lands; third bona
fde settlers residing thereon.
The rights Of the several classes to the lands
referred TO in the section are successive, In the
order stated in the section, The lrst in right is
the homestead or presumption settlers, whose
entry hos been wrongfully cancelled. II he
elects to assert his right, and has not been dis.
qualified by locating another claim or making
another entry In lieu OF the entry erroneousiy
cancelled, his right is absolute, and the success.
siye rights OF the remaining two classes cannot
attach II he lawfully asserts his claim. If he
fails to claim the land. or is disqualified under
the act, the second-class Of persons, who are the
bona fde purchasers OF the land unclaimed by
him, attach and hnve precedence over the third
class. The bona fde purchasers here reforred to
nre those who, without knowledge Of wrong or
error, have purchased from the railroad COM
pany lands which had been previously entered
by o pre.emption or homestead settler, whose
entry had been enormously cancelled, as de-
scrlbed in the first clause Of the third section,
and which land the pre-emption or homestead
settler did not elect to claim after the recovery
by the proceedings prescribed by the second
section OF the last act.
The second question submitted by you is:
"Can the department. after adjustment Of the
grant by the department, issue patent to the
purchaser OF such land before the said land has
been reconveyed by the road, or title recovered
by judicial proceedings? This question as
shown by your. letter, refers to patents whose
issue is provided for IN the fourth section of the
act The fourth section is q part Of u general
scheme for the disposition OF lands which have
been enormously certified or patented to the
railroads, which certifcation or patenting has
been set aside and the title restored to the
United States as provided for In the second sec.
tion. The language Of the section, that as to
all lands which have been so errone-
ously certified or patented rs aforesaid, " in tho
fourth section, refers to the same lands de-
scribed in the second section, as follows: THAT
IL it shall appear that lands have been,
from any cause, heretofore orroneousiy certi,
fled or patented, etc."
The second section declares that the mode to
finally determine whether the lands shall have
been SO enormously certified or patented, shall
be by the admission OF the company and recon-
veyance, or in case Of dispute. by judicial pro-
galIy determined to belong to the United States,
the right to issue patents under the fourth seq
ton does not arise, II patents should issue un-
der the fourth section before recOnvcyance or
judicial recovery under the second. and pro.
ceedings should then be instituted to cancel
the patent issued to the railroad In cnse Of
% ceedinss instituted the patents would il be be out out.
standing Mt the same time for the same land.
BY express words OF the section with reference
."The person or persons SO purchasing in good
faith = shall be entitled to the land so
purchased after the grants respective
~ shall have been adjusted" AS the adjust
ments, then, must be Completed first, the pat
ents under the fourth section are only intended
to be issued after 1t shall have been legally de-
section. then the certfcation or patent to the
railroad had been enormously issued.
The thiri question is as follows Third, the
fifth section Of said act provides that where q
railroad company has sold TO citizens Of the
United States, or persons who have declared
their intention OF becoming such, lands not con-
same being the numbered section prescribed in
its grant, and coterminOus with the con-
structed part Of the road. and where such lands
are Tor any reason one excepted from the operations
for the bona fde purchaser thereof from said
company to make payment to the United States
for said land, at the ordinary government price
for like lands, and thereupon patents shall issue
therefor to the said bona .nde purchaser or his
heirs or assigns. The question submitted under
this section Is whether the proviso last above
quoted is confined In its application to the lands
within the primary granted limits of which the
company has made selection, but which has not
been approved to It."
word grant" must have necessarily included
both the primary and indemnity limits in the ad.
juStment, as 1t was doubtless intended that tho
adjustment should be o full and final one The
land- which, under the adjustment. were found
not to be the property of tho railroad. were in
tended to be free from the cloud of claim by the
railroad. and restored to the public domain for
disposition according to law. The intent OF the
act shows that to carry out Its last purposes the
word grant" wherever used in the second,
third and fourth sections, must include the
lands In both primary and indemnity limits,
as each directly, or by necessary implication.
refers to the adjustment provided for in the first
section. The protection afforded and redress
granted the settler by each of the sections is
fully as important in the indemnity US in the
primary limits.
The limitation Of further certification or pat
enting contained in the seventh section is fully
Us important as, and of more practical vnlue
when applied to tho indemnity limits, than to
the primary limits Of the grant. The fifth SEQ
tiOn is q part of the same scheme the resi-
due OF the act The wrong done the settler,
who in good faith shall have purchased lands OF
the adjustment is shown to have no legal right
is identical, whether the purchases are In the
indemnity or primary limits. The hardship no
may be subjected to by loss OF his land, i'm
provements and labor is the same in either case
That the section 30 by the railroad company
shall have been approved is not required by the
fifth section, nor that 1t shall have been pat
ented. That the land shall have been approved
to the company, before the purchasers shall be
entitled the benefit OF the sixth section. is not
quisite established, to entitle those wronged to
its benefit is that they shall be citizens of the
United States, or shall have declared their in
tention TO become citizens: that 1t shall have
part OF its grant; that the land shall not have
been conveyed to, or for the use OF the COM
pany; that the lands shall be of the numbered
sections prescribed In the grant and co-termin-